Bangalore District Court
Smt. G.Gayathri vs Smt. Lalithamma on 5 July, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 5th Day of July, 2016
O.S.No. 2268/2009
Plaintiff : Smt. G.Gayathri
W/o late K.V.Gangadhar
Aged about 50 years,
R/at Kadnoor village,
Madhure Hobli,
Doddaballapura Taluk,
Bengaluru Rural District
[By Sri. S.A.Khadri - Adv.]
-Vs-
Defendants : 1. Smt. Lalithamma
2nd W/o late K.V.Gangadhar
Since deceased by her LRs.
1a) G.Naveen Kumar
S/o late Lalithamma
Aged about 24 years,
1b) Kumari M.S.Jahnavi
D/o late Lalithamma
Aged about 22 years,
1c) Smt. M.S.Chandana
D/o late Lalithamma
Aged about 20 years,
All are R/at No.380, Krishnamurthy
Colony, Siddapura, Jayanagar
1st Block, Venkatareddy Nagar,
Bengaluru - 11
[D(a) - By Sri. M.R., Adv.]
[D1(b) & (c) - Exparte]
2 O.S.No.2268/2009
Date of institution of the suit 31.03.2009
Nature of the suit Declaration & Injunction
Date of commencement of 15.04.2010
recording the evidence
Date on which the judgment 05.07.2016
was pronounced
Total duration Years Months Days
07 03 05
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This suit is filed by the plaintiff for declaration that she is the legally wedded wife of deceased K.G.Gangadhar S/o late V.Venkatanarayanappa who was working in the office of BBMP, Bengaluru and to declare that the plaintiff is the absolute owner in possession and enjoyment of the suit property or to declare that the plaintiff is entitled for half share over the suit property and to order for enquiry regarding mesne profits from the date of suit till realization and to direct the defendants to give her legitimate half share.
2. The brief facts of the plaintiff's case is that, the plaintiff is the legally wedded wife of late K.V.Gandaghar and her marriage took place on 31.5.1980 as per the Hindu rites and customs and the plaintiff has lived along with her 3 O.S.No.2268/2009 husband in the suit property. The husband of the plaintiff was the absolute owner of the suit property. He was working in BBMP till his death on 26.4.2008. The plaintiff lived happily with her husband for a period of 15 years and thereafter, there was some misunderstanding and K.V.Gangadhar developed illegal relationship with the defendant and has started to neglect the plaintiff. The plaintiff started to reside in her parents house. The husband of the plaintiff has not come to her parents house even to see the plaintiff. The plaintiff came to know that he is having extra marital relationship with the defendant. Thereafter, she has filed C.Misc.16/98 before the Principal Civil Judge and JMFC, Doddaballapura seeking maintenance. Interim maintenance was granted by the court and thereafter, the husband of the plaintiff appeared in the said case and agreed to pay the maintenance. Thereafter, both the plaintiff and her husband lived for some time together and maintenance amount was also not paid. As on the date of death of plaintiff's husband, plaintiff and defendant are in joint possession and enjoyment of the suit property and the plaintiff is having half share in the suit property. The suit property was purchased out of savings and selling jewels of the plaintiff. Though number of panchayaths were held, the 4 O.S.No.2268/2009 defendant has refused to give legitimate share of the plaintiff. The defendant is 2nd wife of K.V.Gangadhar and is not entitled for any right, title and interest in the suit property. The defendant is now trying to alienate the suit property. The plaintiff is the legally wedded wife of the deceased and is entitled for enjoyment of the estate of the deceased. On 15.3.2009, panchayath was held in the locality and the plaintiff demanded her share over the suit property and the defendant has refused to affect partition and to deliver her share. Therefore, the plaintiff has filed this suit.
3. During the pendency of the suit, the defendant died and her children are brought on record as defendants 1(a) to 1(c). The defendant during her life time, has filed the written statement and denied the case of the plaintiff. The defendant admitted that K.V.Gangadhar was the absolute owner of the suit property. The defendant has denied that the plaintiff was the wife of K.G.Gangadhar. The defendant has denied that the marriage of the plaintiff with K.G.Gangadhar took place on 31.5.1980. It is stated that the wedding card produced by the plaintiff is a created document. It is denied that the plaintiff stayed with K.G.Gangadhar for 15 years. It is also denied that there was dispute between the plaintiff 5 O.S.No.2268/2009 and her husband and then she went to her parents house and during that time, deceased K.G.Gangadhar had extra marital relationship with the defendant. The defendant has denied the case of the plaintiff in total. The defendant has stated that deceased K.G.Gangadhar after marrying the defendant stayed in the suit property along with the defendant, wherein three children are born to them and the elder son is aged 23 years. The defendant has stated that she is not aware of the litigation for maintenance before Doddaballapura court. She has stated that the defendant never participated in any panchayath held by locality people. It is stated that if the age of the plaintiff is calculated, the age of the plaintiff would be only 10 years as on 31.5.1980 which is unbelievable. On all these grounds, the suit is prayed to be dismissed.
4. The defendant No.1(a) has submitted that he adopts the written statement of defendant. The defendants 1(b) and (c) have remained exparte in this case.
5. On these pleadings, my learned Predecessor has framed the following Issues: -
1) Whether the plaintiff proves that she is legally wedded wife of the deceased K.V.Gangadhara?6 O.S.No.2268/2009
2) Whether the plaintiff is entitled for reliefs as sought for?
3) What order or decree?
6. In support of the plaintiff's case, PW.1 to 4 are examined. Ex.P1 to P12 are marked. The defendants have not lead any evidence.
7. Heard the arguments of the plaintiff's counsel. The defendants have not addressed any arguments.
8. My answer to the above issues are as under:-
Issue No.1: In the Affirmative Issue No.2: The plaintiff is entitled for partition and separate possession of half share in the suit property.
Issue No.3: As per final order, for the following:
REASONS
9. Issue No.1 and 2:- Both these issues are taken together for discussion to avoid repetition.
10. The case of the plaintiff is that she is the legally wedded wife of deceased K.V.Gangadhara who died in the year 2008. According to the plaintiff, the suit property is the absolute property belonged to her husband and after his death, she is having half share in the suit property. According to the plaintiff, there was misunderstanding 7 O.S.No.2268/2009 between the plaintiff and her husband and due to that, her husband has deserted her and she was residing in her parents house and during that time, her husband had extra marital relationship with the defendant. According to the plaintiff, she had filed maintenance petition in Doddaballapura Court and her husband had come to the court and agreed to pay the maintenance and there was compromise and thereafter, the plaintiff again resided with her husband for some time. According to the plaintiff, as on the date of death of her husband, plaintiff and defendant are in joint possession and enjoyment of the suit property and are having half share in the suit property. The defendant in her written statement has denied the claim of the plaintiff. She has contended that she is the legally wedded wife of K.V.Gangadhara and she is having three children out of the wedlock. This defendant has died during the pendency of the suit and her children who are brought on record, have not filed any separate written statement. The defendant 1(a) has adopted the written statement filed by his mother.
11. The plaintiff has given evidence as P.W.1 and also lead the evidence of P.W.2 and 4. The defendant 1© who is exparte in this case, has given evidence in favour of the 8 O.S.No.2268/2009 plaintiff as P.W.3. P.W.1 in her evidence has stated her case and stated that she is the legally wedded wife of deceased K.V.Gangadhara and that she lived with her husband in the suit property and that her husband had extra marital relationship with the defendant and also stated that on the death of her husband, she is having half share in the suit property. P.W.2 and 4 have also stated about the marriage of the plaintiff with deceased K.V.Gangadhara. P.W.3 who is daughter of deceased K.V.Gangadhara and defendant No.1(b) in the present case, has supported the case of the plaintiff. She has stated in her affidavit that, as the plaintiff had no issues from her marriage with K.V.Gangadhara, K.V.Gangadhara married defendant Lalithamma and out of the marriage, three children are born to her. She has stated that during the time of her father K.V.Gangadhara, he has maintained Lalithamma and her children in a separate rented house and plaintiff and deceased K.V.Gangadhara were living in the suit property. She has stated that due to some differences between the deceased K.V.Gangadhara and plaintiff, plaintiff left the house and started staying in her parents house and during this time, K.V.Gangadhara had brought the defendant and three children and thereafter they started staying in the suit property. She has stated that her 9 O.S.No.2268/2009 brother Naveen the defendant No.1(a) has misrepresented before the employer of her father and got the job and entire service benefits in which the plaintiff is having half share. None of these witnesses are cross-examined for the defendants.
12. The plaintiff has produced the khatha extract of the suit property showing that it is standing in the name of K.V.Gangadhara. The holder khatha certificate is also produced. These documents are marked as Ex.P1 to P3. The genealogical tree is also produced as Ex.P4. The copy of the marriage invitation card of the plaintiff, death certificate of her husband and the endorsement given by BBMP, residence certificate, copy of the order sheet of Cr.Misc. petition and the copy of the petition and copy of the interim application filed in the said case and also Vakalath of K.V.Gangadhara are all produced as Ex.P5 to P12. The defendants have not given any evidence and have not produced any documents.
13. On looking to the pleadings, evidence and the documents produced, the case of the plaintiff is that she is the wife of deceased K.V.Gangadhara and suit properties belonged to her husband K.V.Gangadhara. According to the plaintiff, she is having half share in the suit property. The 10 O.S.No.2268/2009 plaintiff has stated that her husband K.V.Gangadhara had extra marital relationship with the defendant and out of the said relationship, he had three children who are defendants 1(a) to (c). The defendant has filed the written statement and denied the case of the plaintiff. After the death of defendant, the LRs brought on record and defendant No.1(a) has adopted the written statement of his mother, but the defendant has not cross-examined P.W.1. The documents produced by the plaintiff referred above have not been disputed by the defendants in this case. The khatha extract and khatha certificate produced at Ex.P1 to P3 show that the suit property is standing in the name K.V.Gangadhara. On the death of K.V.Gangadhara, the plaintiff and defendant are claiming the property. The marriage invitation card of the plaintiff produced at Ex.P5 show that the marriage of plaintiff with K.V.Gangadhara has taken place on 31.5.1980. Death certificate of K.V.Gangadhara is produced at Ex.P6. The plaintiff has produced the order sheet, petition copy and interim application copy and also the Vakalath copy of C.Misc.16/98 as Ex.P8 to P12. These documents along with marriage invitation card show that the plaintiff is wife of deceased K.V.Gangadhara and she lived with him and as he has deserted her and has neglected to maintain her, she had 11 O.S.No.2268/2009 filed maintenance petition in which he has even appeared and agreed to pay the interim maintenance to the plaintiff. By producing these documents, the plaintiff has successfully proved that she is the legally wedded wife of deceased K.V.Gangadhara. The documents produced clearly show that deceased K.V.Gangadhara was the absolute owner of the suit property. Admittedly, the plaintiff is not having any children.
14. The plaintiff has filed the suit against the defendant stating that she is the legally wedded wife of deceased K.V.Gangadhara and she is having half share in the suit property. The plaintiff has conceded the relationship of her husband with the defendant. She has also conceded that out of such relationship, three children are born. In fact the plaintiff has even examined one of the daughter of defendant by name Chandana i.e., defendant No.1(b) as P.W.3 who has supported the plaintiff's case and also stated that there were differences between the plaintiff and her husband and when she started staying in her parents house, K.V.Gangadhara brought the defendant and three children and thereafter they were staying in the suit property. Though the plaintiff has contended that she is the legally wedded wife of deceased K.V.Gangadhara, she generously conceded that the 12 O.S.No.2268/2009 defendant is also having share in the suit property. Though in the reliefs column she claimed declaration that the plaintiff is the legally wedded wife of the deceased K.V.Gangadhara and she is the absolute owner in possession and enjoyment of the suit property, she has also sought for another relief that she is entitled for half share in the suit property. If the entire plaint is seen, the plaintiff's claim is one for partition and separate possession of half share in the suit property and not for declaration of her absolute ownership. Even the court fee is paid under section 35(2) of KCF & SV Act. Therefore, as seen in the plaint, the plaintiff herself has admitted that the defendant and her LRs are having half share in the suit property. Hence, there is no need to go into the other aspects of the matter. The plaintiff has accepted the right of the defendant to an extent of half share in the suit property. The evidence of P.W.1 to 4 and the documents produced by the plaintiff have remained unchallenged.
15. On looking to the plaint averments and the uncontroverted evidence of P.W.1 and the documents produced by the plaintiff, the plaintiff is successful in establishing her case. In the chief-examination directly before the court, P.W.1 has stated that she is the legally wedded 13 O.S.No.2268/2009 wife of deceased K.V.Gangadhara and his second wife has died during the pendency of the suit and the defendants 1(a) to (c) are the children born to her husband from his second wife. In the evidence, PW1 has even stated that the mother of her husband is alive. In the course of arguments, the counsel for the plaintiff has filed affidavit of plaintiff to the effect that the mother of plaintiff's husband died in 2011 and he has also produced death certificate. Therefore it is clear that the mother of plaintiff's husband is not alive. The plaintiff has clearly admitted that the defendant is second wife of her husband and out of such relationship, three children are also born to them. By considering this, the plaintiff has sought for partition and separate possession of her share in the suit property and she has contended that she is having half share as first wife of deceased K.V.Gangadhara. On considering all these aspects and as the defendant has failed to disprove the claim of the plaintiff by cross-examining P.W.1, the plaintiff is entitled for the relief of declaration of her status as wife of deceased K.V.Gangadhara and for partition and separate possession of her half share in the suit property. Though the plaintiff has prayed for enquiry regarding mesne profits, as the plaintiff has stated that she is in joint possession of the suit property, question of awarding any mesne profit does not 14 O.S.No.2268/2009 arise. Therefore, the plaintiff is entitled for declaration and also for partition and separate possession of half share in the suit property. Accordingly, both these issues are answered.
16. Issue No.3:- For the discussion made on above issues, the suit of the plaintiff is to be partly decreed. Accordingly, following order is passed :-
ORDER Suit of the plaintiff is partly decreed. It is declared that the plaintiff is the legally wedded wife of deceased K.V.Gangadhara.
The plaintiff is entitled for partition and separate possession of half share in the suit property by metes and bounds.
In the circumstances of the case, there is no order as to costs.
Draw preliminary decree accordingly. (Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 5th day of July, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.15 O.S.No.2268/2009
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 G.Gayathri P.W.2 Chikkanna P.W.3 Chandana P.W.4 Rajanna
List of documents exhibited for plaintiff:
Ex.P1 Khatha extract Ex.P2 Khatha certificate Ex.P3 Khatha extract Ex.P4 Genealogical tree Ex.P5 Certified copy of Marriage invitation card Ex.P6 Certified copy of death certificate Ex.P7 Certified copy of endorsement Ex.P8 Certified copy residential certificate Ex.P9 Certified copy of order sheet in C.Misc.16/98 Ex.P10 Certified copy of petition in C.Misc.16/98 Ex.P11 Certified copy of I.A. in C.Misc.16/98 Ex.P12 Certified copy of Vakalath in C.Misc.16/98
List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Nil XVII Addl. City Civil & Sessions Judge, Bengaluru. ***